Blundell v R

1. [1]

   PAYNE JA: I agree with N Adams J.

2. [2]

   JOHNSON J: I agree with N Adams J.

3. [3]

   N ADAMS J: On 18 October 2016, Nathan Blundell (“the appellant”) was convicted as an accessory before the fact to the murder of Corey Power (“the deceased”) following a jury trial before Hall J. He was sentenced to 10 years imprisonment with a non-parole period of 7 years. That sentence commenced on 7 July 2015.

4. [4]

   Mr Power was killed on 29 August 2013 by Owen Fuller. Mr Fuller beat him to death with a tomahawk. The appellant was not present at the scene. Mr Fuller made admissions and was later convicted of the deceased’s murder. The appellant was tried based on his encouragement and assistance to Mr Fuller through words alone and in circumstances where he was not present at the scene.

5. [5]

   The appellant appeals against his conviction under s 5(1) of the Criminal Appeal Act 1912 (NSW). He does not seek leave to appeal against the sentence imposed on him.

6. [6]

   This appeal concerns what was described by senior counsel for the appellant at the hearing of this appeal as the “ill [sic-in] frequently visited shores of accessory before the fact”. It raises questions regarding the proper directions to be given to a jury when the Crown case relies upon principles of accessorial liability but disavows any reliance upon principles of joint criminal enterprise or extended joint criminal enterprise.

7. [7]

   The appellant relies upon two grounds of appeal but Ground 1 has four sub-grounds such that there are in fact five separate complaints made. All five complaints pertain to the trial judge’s summing up and are as follows:

8. [8]

   Not all of the grounds of appeal relied upon by the appellant were raised by trial counsel before Hall J and thus the application of Rule 4 of the Criminal Appeal Rules 1952 (NSW) arises for consideration.

9. [9]

   The Crown did not contend that Rule 4 was enlivened with respect to grounds 1(a), (b) and (d) in view of the matters that trial counsel did raise which relate to these grounds. Leave was not opposed in any event in respect of Ground 1 given the nature of the alleged errors, namely, misdirections on an element of the offence: Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24]-[25] per Bathurst CJ.

10. [10]

    The Crown contended that Rule 4 was enlivened in relation to Ground 2 and that leave should not be granted in relation to that ground. It was submitted that no complaints were made nor any redirection sought in relation to the complaints now made under Ground 2. This fact was relied upon by the Crown as a basis for concluding that counsel did not believe, in the atmosphere of the trial, that any infelicity of expression in the manner in which the trial judge expressed himself affected the interests of the accused adversely: Greenhalgh v R [2017] NSWCCA 94 (“Greenhalgh v R”) at [42] per Basten JA; ARS v R [2011] NSWCCA 266 (“ARS v R”) at [148]; R v Dookheea (2017) 91 ALJR 960; [2017] HCA 36 (“R v Dookheea”) at [37].

11. [11]

    I am satisfied that Rule 4 is not enlivened in relation to Grounds 1(a), (b) and (d) and that, for reasons which appear below, leave should be granted to argue both Grounds 1(c) and 2. In those circumstances, I propose to refer to Mr Blundell as the “appellant” rather than the “applicant” in this judgment.

12. [12]

    The original indictment charged two counts – one for murder of the deceased and one for accessory before the fact to murder of the deceased. The indictment was amended and when presented at trial contained a single count of being an accessory before the fact to murder. It was in these terms:

13. [13]

    The indictment stated that the charge was brought under ss 18(1)(a) and 346 of the Crimes Act 1900 (NSW). Section 18(1)(a) of the Crimes Act provides that:

14. [14]

    Section 346 of the Crimes Act provides that:

15. [15]

    Section 346 does not define the term “accessory before the fact” nor does it set out the elements of such an offence. By way of contrast, the Crimes Act describes the role of the accessory before the fact to “minor indictable offences” in s 351 (which is otherwise in similar terms to s 346) as follows:

The evidence at trial

1. [16]

   Much of the evidence in the Crown case was not in dispute. The majority of it comprised a printout of a series of text messages and Facebook messages between the appellant and the deceased, the appellant and Mr Fuller, and Mr Fuller and the deceased. The appellant made a voluntary statement to police on 30 August 2013 and participated in three electronically recorded interviews with suspected persons (“ERISPs”). A statement of agreed facts signed by the appellant became Exhibit D. The Crown case can be summarised as follows.

2. [17]

   As at late July or early August 2013, the appellant, the deceased and Mr Fuller all resided in Young. They were three young men who were using illicit drugs and seeking to obtain money to buy drugs.

3. [18]

   In late July or early August 2013, the appellant purchased a white Suzuki Swift from the deceased for $600. About two days later, the appellant attempted to return the vehicle to the deceased. The deceased took the vehicle back and agreed to reimburse the appellant by supplying him with drugs to the value of $600. He failed to do so.

4. [19]

   On or around 8 August 2013, the appellant and Mr Fuller committed a break and enter at a business in Young and stole a utility truck and a trailer which contained tools and machinery. The appellant, Mr Fuller and the deceased agreed that the deceased would take the goods on consignment which would be on-sold for money or drugs and that the deceased would give the appellant and Mr Fuller $2,000 of the total proceeds. The deceased went to Canberra and disposed of the stolen goods but did not provide any money or drugs to the appellant or Mr Fuller after his return from Canberra.

5. [20]

   On 16 August 2013, the appellant enquired of the deceased by way of Facebook message, “[h]ow’d ya go with that coin”. The deceased responded that the stolen goods were still in his car. On the morning of 19 August 2013, the appellant said that he needed “at least 200 of that coin by tomorrow”. The deceased had not replied by mid-afternoon. The appellant sent the deceased another message telling him that he would come and find him on the weekend. It is from this point that the threatening discourse between the parties escalated, with the following exchange taking place at a time when the deceased was still in Canberra:

6. [21]

   Between 20 August and 22 August 2013 there were further similar threatening message exchanges between the appellant and the deceased. The last of those messages was sent at 3:20pm on 22 August 2013.

7. [22]

   After the last of the messages between the appellant and the deceased, the appellant made a brief telephone call to Mr Fuller (which was not recorded) after which time Mr Fuller and the appellant had the following exchange over text message between 6:16pm and 6:38pm:

8. [23]

   The following exchange then took place between 10:28pm and 11:34pm on 22 August 2013:

9. [24]

   There was no evidence adduced at the trial of any other relevant exchanges between either the appellant and Mr Fuller or the appellant and the deceased until 28 August 2013. The evidence disclosed that, on or about that day, the deceased returned to Young from Canberra.

10. [25]

    On 28 August 2013, the following text message exchange took place between the appellant and Mr Fuller between 8:28am and 11:55am:

11. [26]

    The reference to “Marras” in the above exchange is a reference to “Tammarra Horne” who gave evidence at the trial. She and the deceased had a young daughter together.

12. [27]

    The last time that the appellant made contact with Mr Fuller prior to the deceased’s murder was this message at 11:55am on 28 August 2013. However, later that date Mr Fuller sent another message to the appellant: “Is he walking”. Then at 2:49pm, Mr Fuller called the appellant who did not answer. He then sent the appellant a further message saying “It’s Owen” followed by a further unanswered call. At 2:54pm, Mr Fuller again called the appellant but received no answer. This was the last time that Mr Fuller attempted to contact the appellant prior to the murder.

13. [28]

    The appellant’s former girlfriend, Samantha Martin, gave evidence that the appellant stayed with her on the night of the deceased’s death (28/29 August 2013) and had slept until the morning. This evidence was not challenged by the Crown in cross-examination.

14. [29]

    In the early hours of 29 August 2013, Mr Fuller woke up and logged onto the Facebook account of his former girlfriend, Amelia-Rose Luke-Browning. He noticed that the deceased had sent a message to her Facebook account whilst Mr Fuller was logged in. Mr Fuller decided to impersonate Ms Luke-Browning so as to lure the deceased to a remote location. When the deceased went to that location, Mr Fuller beat him to death with a tomahawk.

15. [30]

    Two unanswered calls were made by Mr Fuller at 4:18am and 4:20am on 29 August 2013 respectively followed by a text message to the appellant which said “Oi bro I got Corey answer”.

16. [31]

    Ms Martin’s evidence was that when she woke up on 29 August 2013 (about an hour and a half before the appellant) she went on Facebook and saw that a dead man had been discovered in Young. She told this to the appellant when he woke up to which he said, “I wonder who it is?” The appellant then charged his phone at a neighbour’s house and when he returned he showed Ms Martin the “Oi bro I got Corey answer” message sent by Mr Fuller (although she did not remember the precise wording). Ms Martin gave evidence that the appellant was worried and told her he was stressing “about Corey”. The appellant did not leave Ms Martin’s residence until 11:00am on 29 August 2013.

17. [32]

    Mr Fuller made full admissions that he had attacked the deceased. He was later convicted of the deceased’s murder. Mr Fuller did not give evidence at the appellant’s trial. His ERISP was not played to the jury nor was the transcript of it provided to them. Defence counsel had sought to put before the jury the following question and answer from Mr Fuller’s interview:

18. [33]

    The trial judge told defence counsel that there was already sufficient evidence before the court to enable the appellant to make the point that Mr Fuller acted unilaterally and with spontaneity and therefore this question and answer was not put before the jury.

19. [34]

    The appellant made a voluntary statement to police on 30 August 2013 (Exhibit C) and participated in three ERISPs: Exhibits J, K and L respectively. Those three ERISPs took place on 30 October 2013, 7 November 2013 and 24 February 2015.

20. [35]

    In the first ERISP on 30 October 2013, the appellant told police that the deceased had not paid him the outstanding $600 and that he had intended to “flog him when I seen him but not kill him”. He asked police “why would I kill him? Then I can’t get my $600.” He said that had he found the deceased he “probably would’ve had a few words and if he got lippy back, probably would’ve punched him in the mouth”. He denied that he was involved in the murder. He said that he had informed people that he wanted to get the deceased, that he asked them to send him a message if they saw the deceased and that he wanted to fight the deceased as he owed him $600. He also said that the deceased was a mate and did not deserve to die like that. The appellant did not deny that he had messaged Mr Fuller in the weeks prior to the deceased’s death and had asked Mr Fuller to inform him if he got hold of the deceased. The appellant said that the last message to the deceased was that he was “going to flog the fuck out of you when I see you, cunt”, but reiterated that the deceased was a good mate. He denied involvement in the murder.

21. [36]

    During the appellant’s second ERISP on 7 November 2013 he said that the deceased owed Mr Fuller money for the stolen generator. He did not deny that he told the deceased several times that he was going to “bash him” in relation to the outstanding $600.

22. [37]

    During the third ERISP on 24 February 2015, the appellant said that he had not told police “the whole truth” because he feared for his safety. He then informed police that it was Mr Fuller who sent the message saying “Oi bro I got Corey answer” and that the deceased owed him and Mr Fuller $2,000 ($1,000 each) with respect to the stolen generator and tools and that this was the basis for the messages he had sent. The appellant said that he sent messages on 19 August 2013 to the deceased with the intention of “just geeing him up”. He said that he had shown Mr Fuller the messages exchanged between him and the deceased “all the way through”. He said that the last messages between him and the deceased were exchanged a week before the deceased had been killed. The appellant denied that he had told Mr Fuller to kill the deceased or that he arranged it.

23. [38]

    The appellant said that he had received a message from Mr Fuller a week prior to the murder and thought it said that Mr Fuller was “going to kill him” (the deceased) but that he thought Mr Fuller was “just talking it up”. He said that he did not remember writing the text which read “jus chop index n look”. The appellant said that Mr Fuller had found a tomahawk one day and said words to the effect of “I just want to hit someone with this”. However, the appellant told him “don’t do that you mad cunt you’ll end up killing some cunt” and that Mr Fuller had thrown the tomahawk away later that day.

24. [39]

    There was no dispute at the trial as to the manner and cause of the death of Mr Power. The sole issue at trial was the role, if any, the appellant played in his death.

25. [40]

    Tammarra Horne gave evidence that she had been in a relationship with the deceased from 2005 to the end of 2011 and they had a daughter together who was born in May 2009. She had remained on friendly terms with the deceased and he would visit from time to time. At some point in August 2013 the deceased stayed with her as he was having issues with his girlfriend, Debbie Nasser. He was staying at her house at the time of his death.

26. [41]

    During the time that the deceased stayed with Ms Horne, she, Ethan Ritchens (her new boyfriend) and the appellant were at her home. Mr Fuller showed up and when the deceased answered the door, Mr Fuller punched him. Ms Horne witnessed this from the kitchen. A fight between Mr Fuller and the deceased ensued in the front yard and Mr Ritchens broke them up. She recalled the deceased and Mr Fuller talking thereafter and shaking hands before Mr Fuller left. The appellant was not present at that time.

27. [42]

    Ms Horne gave evidence that a couple of days after the fight between Mr Fuller and the deceased the appellant attended her home and informed her that he and Mr Fuller had stolen the generator and tools. She said that a week or so later the appellant again attended her house and told her that the deceased had not paid them for the generator. The appellant said that they were going to send some boys over to Canberra but did not go into detail about that.

28. [43]

    The mother of Ms Horne’s ex-partner, Sophie Anderson, gave evidence. She recalled the appellant telling her that the deceased owed him “about $600 for something that was stolen” and that he was “going to get the cunt”.

29. [44]

    Ms Nasser, the deceased’s former partner from Canberra, also gave evidence. She said that during a trip on 10 August 2013 (she had picked up the deceased from Young and they were heading back to Canberra), the deceased told her “that apparently Owen and Nathan had done an armed robbery at the Caltex Service Station and that Owen had confronted him because he’d been telling people about things about what they’d been doing around town, and Owen had punched him in the face and that Nathan and him had been exchanging messages, and Nathan wasn’t happy about… what was happening…”. At a later occasion the deceased told her he had received messages of a threatening nature from the appellant but that he put it down to them being “just little smart mouths”.

30. [45]

    Ms Martin also gave evidence that she remembered having a conversation with the appellant about three weeks prior to the murder of the deceased during which the appellant said that the deceased owed him money for some tools and that after a few weeks “he got angry about it and said he was going to bash him”. She was “reasonably sure” that the words used were “I’m going to bash that cunt”. Ms Martin agreed that the appellant said to her on 29 July 2013 that he was stressed. She said that appellant had told her he was stressing about the deceased because he had sent messages to him saying that he was going to get someone to “bash” him if he did not give him money for the tools.

31. [46]

    The Crown relied upon the evidence that the appellant knew Mr Fuller had access to a tomahawk. There was a message from the appellant to Mr Fuller that “If you see him jump on his head” and a message “chop index n look”. There was thus evidence that the appellant intended to encourage Mr Fuller to cause really serious bodily injury to the deceased. In terms of assistance, the Crown’s case was that the appellant assisted Mr Fuller by telling him that the deceased was back in Young and then later that day telling him that the deceased was at a particular place at a particular time.

32. [47]

    The appellant did not give evidence at trial. He relied upon the answers given in his ERISP. The defence case was that although the appellant encouraged Mr Fuller to engage in anti-social behaviour towards the deceased, he did not encourage him to commit grievous bodily harm against the deceased. He was not aware of all of the essential facts that would have made him privy to Mr Fuller’s intention to cause grievous bodily harm to the deceased at the time of his encouragement, including the fact that he would strike him with a tomahawk or the day or time of the attack.

33. [48]

    In his closing address defence counsel relied on the evidence of the appellant’s reaction when he got the text message from Mr Fuller that he had “got Corey.” It was said to show that the appellant did not intend grievous bodily harm to be carried out. Rather, he wanted to confront the deceased and fight him. The defence case was that the events on the morning of 29 August 2013 were the result of Mr Fuller’s own spontaneous folly and the appellant could not have foreseen them. In this way, Mr Fuller was not encouraged or assisted by the appellant when he murdered the deceased.

34. [49]

    It was submitted that the messages between the appellant and the deceased did not establish the appellant’s intent for murder. They showed anger but the appellant’s words were hollow as he in fact failed to do the things he said he would.

35. [50]

    During the opening address on 10 October 2016, the Crown Prosecutor told the jury that the elements of an accessory before the fact to murder were: that the death was in fact a murder; that the accused “intentionally encouraged the commission of the offence and/or intentionally set out to assist in preparations in the offender to commit that offence”; that “the crime that was committed was one that [the appellant] intended would be committed or was within the scope of what he believed would be committed”; and that before the crime by Mr Fuller was committed, the appellant had neither a genuine change of mind nor expressly instructed Mr Fuller not to commit the offence.

36. [51]

    The Crown Prosecutor also told the jury that to “counsel” is to “order, advise, encourage or persuade” and that to “procure” means “to intentionally take steps to ensure that an offence was completed by the principal.” The Crown case, as opened to the jury, was that the appellant “assisted, encouraged or procured” Mr Fuller to inflict grievous bodily harm on the deceased.

37. [52]

    Defence counsel disagreed with the Crown’s formulation of the elements of the offence and, in his opening address, informed the jury that the trial judge would correct this. He identified in his opening that the three real issues in the trial were whether the appellant intentionally encouraged Mr Fuller to commit the murder; whether the crime that was committed was one that the appellant had intended; and whether the appellant knew the essential facts of what made up the crime that Mr Fuller committed.

38. [53]

    The disagreement as to the elements of the offence arose again throughout the trial. One of the areas of dispute was the question of whether it was correct to describe the crime committed as being within the “scope of what he believed would be committed” as opposed to the appellant intending that a certain offence would be committed and encouraging Mr Fuller to carry it out.

39. [54]

    The transcript reflects that on 13 October 2016, defence counsel submitted that a case alleging an accessory before the fact to murder could not be proved through principles of joint criminal enterprise and extended joint criminal enterprise. It was submitted that terms like “scope” and “contemplation” were inapplicable. The transcript reflects that his Honour accepted this at that time.

40. [55]

    In his closing address, the Crown Prosecutor stated that the fundamental question was whether the appellant had encouraged or assisted Mr Fuller to assault the deceased and, if so, whether he intended by that encouragement or assistance that Mr Fuller would inflict very serious bodily injury upon the deceased. Despite the Crown Prosecutor opening on a case of, inter alia, “procuring” the murder, there was no reference to procuring in the closing address.

41. [56]

    The trial judge ultimately directed the jury that the Crown case was one of encouragement (in that the appellant had used words like “jump on his head” and “chop index”) and/or assistance (in that the appellant told Mr Fuller that the deceased was back in town and that he was at “Marra’s”). No objection was made to the Crown case being left to the jury on that basis and it is not the subject of any ground of appeal.

42. [57]

    The complaints made about the summing up are all directed at the elements of the offence and the conflation of the relevant principles with those of joint criminal enterprise and extended joint criminal enterprise. His Honour directed the jury as to the charge brought against the appellant in these terms: “…the charge against the accused is, as you have heard, to the effect that he was an accessory before the fact of murder. That is to say, that he assisted and encouraged Owen Fuller to commit a crime against Corey Power, and the Crown alleges in this case, that he encouraged and assisted in the offence of assault to inflict grievous bodily harm upon Corey Power” (emphasis added).

43. [58]

    In the context of explaining the concept of circumstantial evidence to the jury, his Honour told the jury:

44. [59]

    Shortly afterwards, in the context of directing the jury as to what they had to be satisfied of beyond reasonable doubt, his Honour stated:

45. [60]

    His Honour provided the jury with written directions entitled “Elements of the Offence”. This document was marked “MFI 12”. Before reading it to the jury his Honour stated:

46. [61]

    His Honour then read MFI 12 to the jury. It was in these terms:

47. [62]

    In terms of the first element set out in MFI 12, his Honour explained that it was common ground that the offence of murder was committed and that they were to “take that element as established beyond reasonable doubt”.

48. [63]

    His Honour then directed the jury about the remaining two elements:

49. [64]

    His Honour then went on to describe “the first limb” being “the acts, the conduct”. His Honour said as follows:

50. [65]

    The trial judge referred to the necessity for the Crown to establish that the appellant encouraged Mr Fuller with “a view to inflicting grievous bodily harm” upon the deceased five times during his summing up. All five references were made during the directions given to the jury about the elements of the offence. Four of these references are extracted in the previous paragraph and the fifth is extracted below at [68].

51. [66]

    His Honour then moved to the element concerning the appellant’s “mental state”:

52. [67]

    In this respect, his Honour set out the Crown case as follows:

53. [68]

    In terms of the requisite knowledge, the trial judge repeated that the Crown had to establish that the appellant knew the essential facts – “that Fuller was going to assault Mr Power with a view to inflicting on him grievous bodily harm” (emphasis added). His Honour then went on to state:

54. [69]

    His Honour then went on to discuss the evidence given at trial. It was during this section of his summing up that his Honour first used the term “design”:

55. [70]

    As will be extracted below, the term “design” was then used a further six times by his Honour, all in the context of summarising the defence counsel’s closing address.

56. [71]

    During the trial judge’s summary of the defence closing address, his Honour referred to the submission made that there were unforeseen events that occurred after the appellant’s last communication with Mr Fuller and that they were a result of Mr Fuller’s own folly that night and not encouraged by the appellant. Those events were Mr Fuller logging onto his former girlfriend’s Facebook, the deceased messaging that account, Mr Fuller impersonating her and luring the deceased to pick “her” up. That submission was summarised by the trial judge in these terms:

57. [72]

    His Honour then gave further directions in the context of summarising the defence closing address which incorporated the term “enterprise” (mentioned five times) along with “design.” His Honour directed the jury in relation to that issue that they must consider “whether later events, occurring whether opportunistically or not, may still remain part of the design of some enterprise that an accused person encouraged in the first place and/or assisted”. His Honour went on, to state:

58. [73]

    After summarising the remainder of defence counsel’s closing address, the trial judge then provided the jury with a document entitled “Legal Principles” which was marked “MFI 14”. That document was in these terms:

59. [74]

    After handing copies of MFI 14 to the jury his Honour then stated:

60. [75]

    His Honour then provided a copy of “MFI 15” to the jury (an index) and concluded his summing up.

61. [76]

    Before turning to consider the grounds of appeal it is necessary to identify the relevant principles applicable to the prosecution of a person charged with being an accessory before the fact in circumstances where no alternate case relying on either joint criminal enterprise or extended joint criminal enterprise is relied upon by the Crown. A survey of the relevant decisions from which the principles concerning accessorial liability are to be derived reveals that it has become increasingly uncommon for a case to be brought against an accused person solely on the basis of accessorial liability. It is of interest to note that, although the High Court has considered the scope of accessorial liability and joint criminal enterprise on a number of occasions, some of the questions raised in this appeal have never been considered by the High Court.

62. [77]

    The appellant does not contend that MFI 12 and the elements documents were wrong per se. Rather, the complaint is that the directions in MFI 12 were insufficient and that two of the directions in MFI 14 were wrong at law. The appellant’s arguments traced the relevant common law principles derived from decisions in both Australia and in the United Kingdom. In order to understand the parties’ submissions, it is necessary to first set out the relevant passages from a number of the decisions relied upon.

63. [78]

    The relevant difference between primary liability (joint criminal enterprise) and derivative liability (accessorial liability) was explained by McHugh J in Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 (“Osland”) as set out below at [111] do not consider it necessary for the purpose of this appeal to consider in any detail the principles of joint criminal enterprise and extended joint criminal enterprise. It is sufficient that I extract the relevant passage from the decision of the High Court in McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37 (“McAuliffe”).

64. [79]

    The Court in McAuliffe (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ) stated the relevant principles to be as follows:

65. [80]

    The grounds of appeal in this matter raise questions concerning causation, knowledge, recklessness, the “continuous” nature of any encouragement or assistance and the potential conflation at the appellant’s trial between principles of accessorial liability as opposed to principals of joint criminal enterprise/extended joint criminal enterprise.

66. [81]

    The cases concerning accessorial liability use language such as principals in the first and second degree and accessories before and at the fact. Although the latter description is somewhat outdated, I propose to adopt it for ease of reference.

Australian Decisions

1. [82]

   An early Australian decision that considered the mental element for accessorial liability was R v Russell [1933] VLR 59 (“R v Russell”). That case concerned the criminal liability of an accused who stood by while his wife drowned their children and herself. In considering the liability of a principal in the second degree, Cussen ACJ said as follows (at 67):

2. [83]

   The phrase “linked in purpose” in R v Russell has been adopted in a number of subsequent decisions.

3. [84]

   The decision in Johns v The Queen (1980) 143 CLR 108; [1980] HCA 3 (“Johns”) concerned whether the doctrine of joint criminal enterprise could attach liability to an accessory before the fact. The phrase “accessory before the fact” is used by the court in that decision to describe the participant in the joint criminal enterprise not present at the scene. Although it is a decision concerned with joint criminal enterprise and “common purpose” (extended joint criminal enterprise) it was held in Johns that there is no practical difference between an accessory before the fact and an accessory at the fact besides the presence of the offender, and also that a person not present at the scene can nonetheless be liable as a principal as part of a joint criminal enterprise/common purpose.

4. [85]

   The appellant in Johns was the driver of a car used in an attempted robbery. He had waited for the principal offenders knowing that one of them carried a pistol, was quick-tempered and capable of becoming violent. The attempted robbery took a bad turn and, in the absence of the appellant, the victim was shot and killed. The appellant was indicted for murder on the basis that he was engaged in a joint criminal enterprise with the principal offenders.

5. [86]

   Two questions arose in Johns concerning the doctrine of “common purpose”. The first was whether the doctrine of common purpose could extend to accessories before the fact. The plurality held that the doctrine of common purpose did extend to an accessory before the fact and that it was not necessary for a party to be present at the scene of an offence to be acting in pursuit of a common purpose with others who were present (see Mason, Murphy and Wilson JJ at 130-1 and Barwick CJ at 112). Barwick CJ held at 112:

6. [87]

   Mason, Murphy and Wilson JJ said at 125-6:

7. [88]

   The High Court adopted the statement of principle of Street CJ in R v Johns [1978] 1 NSWLR 282 at 289, where his Honour quoted JW Cecil Turner, Russell on Crime (12th ed, 1964) (“Russell on Crime”) at 289 as follows:

8. [89]

   Their Honours continued at 130-1:

9. [90]

   Their Honours then described s 346 of the Crimes Act as manifesting a legislative intention that an accessory before the fact be treated as a principal (at 133):

10. [91]

    The appellant placed significant weight on the decision of Giorgianni v R (1985) 156 CLR 473; [1985] HCA 29 (“Giorgianni”). That case did concern a case of an accessory before the fact in which there was no reliance by the Crown upon principles of joint criminal enterprise. The appellant had leased a truck which was driven by his employee. The truck collided with other vehicles when its brakes failed which caused the death of multiple persons. The appellant was not present at the time of collision however he was convicted of culpable driving causing death. The charge had been brought on the basis that the appellant and his employee had worked on the truck 10 days prior to the collision and that the appellant ought to have known of the defects.

11. [92]

    There were two issues before the Court. First, whether a person could be liable as an accessory before the fact to the strict liability offence of dangerous driving occasioning death. Second, whether recklessness (as opposed to actual knowledge) as to the existence of facts and circumstances which would render the driving dangerous was sufficient to constitute criminal liability.

12. [93]

    In relation to the first issue Gibbs CJ made the following observations (at 478):

13. [94]

    His Honour then went on to consider the second question of whether it was necessary to prove that the accessory before the fact knew all the circumstances which made what was done an offence or whether recklessness was sufficient. His Honour considered the terms of s 52A of the Crimes Act and observed that:

14. [95]

    Gibbs CJ went on to refer to the observations of Judge Learned Hand in United States v Peoni (1938) 100 F.(2d) 401 (“United States v Peoni”) where his Honour referred to a number of statutory definitions and then stated:

15. [96]

    Gibbs CJ went on to state (at 480):

16. [97]

    His Honour next noted that s 351 of the Crimes Act is based on s 8 of the Accessories and Abettors Act 1861 (UK) which was declaratory of the common law on the subject (at 480). His Honour went on to state (at 480):

17. [98]

    Gibbs CJ went on to state:

18. [99]

    In further considering the question of whether knowledge (as opposed to recklessness) is sufficient to convict an accessory before the fact, Gibbs CJ made the following observations at 481 (a passage relied upon by the appellant in this matter):

19. [100]

    Gibbs CJ (at 482) then referred to numerous other cases that stand as authority for the general principle that “a person can be convicted as a secondary party only if he had knowledge of the essential circumstances.” In terms of wilful blindness his Honour then observed (at 482) that:

20. [101]

    His Honour also noted that:

21. [102]

    In terms of recklessness, Gibbs CJ held (at 487) that:

22. [103]

    His Honour summarised the relevant legal principles as follows (at 487-8):

23. [104]

    Justice Mason explained the use of the terms “aid”, “abet”, “counsel” and “procure” at common law and observed that there is no legal distinction between an accessory before the fact and a principal in the second degree beyond presence. His Honour stated (at 492):

24. [105]

    His Honour discussed the “doctrine of secondary participation to statutory offences involving no mental element”, as considered in a number of cases, and then said (at 494):

25. [106]

    This passage from the judgment of Mason J was also relied upon by the appellant; in particular the need for the jury to be told that there must be a link in purpose between the secondary party and the principal offender and that the secondary party must do something to “bring about, or render more likely” the offence.

26. [107]

    In their joint judgment in Giorgianni, Wilson, Deane and Dawson JJ held at 505 (referring to cases such as Johnson v Youden [1950] 1 KB 544), that:

27. [108]

    In terms of whether recklessness could apply to an offence of aiding, abetting, counselling or procuring, their Honours said (at 506-7):

28. [109]

    Osland v The Queen is a decision of the High Court concerned with principles of joint criminal enterprise rather than those of accessorial liability. However, relevantly for present purposes, the Court in that matter considered the differences between primary and derivative liability. Mrs Osland and her son were charged with murdering Frank Osland. The Crown case was that Mrs Osland mixed sedatives into the deceased’s dinner and, while he was sleeping, her son fatally struck him with an iron pipe in the presence of the appellant.

29. [110]

    The appellant and her son were tried together and neither disputed that they had killed the deceased. Rather, each of them relied on provocation and self-defence on the basis of years of violent abuse. The appellant was convicted of murder but the jury was hung with respect to her son. The son was later re-tried and ultimately acquitted.

30. [111]

    The appellant and her son were charged with murder on the basis that they were parties to a joint criminal enterprise to murder the deceased. The main issue for the High Court was whether the verdicts between the appellant and her son were logically inconsistent. In his judgment dismissing the appeal, McHugh J looked at the nature of different types of criminal liability and complicity as follows (at 341 to 343):

31. [112]

    His Honour then went on to consider the principles of joint and extended joint criminal enterprise which are not presently relevant.

32. [113]

    Justice Callinan similarly described the difference between primary and derivative liability at 400 as follows:

33. [114]

    Principles of accessorial liability were considered by this Court in R v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29 (“Phan”) but that was not a case concerned with an accessory before the fact either. Rather, that case concerned a principal in the second degree who was present at the scene of the offence. This Court held that the instruction given by the trial judge did not sufficiently address the matters required to be proven to establish the liability of the appellant in circumstances where he asserted that his presence at the scene was accidental, that he was unconscious at the time of the shooting, and that he did not provide any encouragement or assistance to the shooter. In that context, Wood CJ at CL (with whom McClellan and Smart JJ agreed) stated:

34. [115]

    His Honour went on to state at [78]:

35. [116]

    Smart J agreed with Wood CJ at CL and in separate reasons observed the following in relation to the elements of the offence of being an accessory present at the scene (at [104]):

36. [117]

    His Honour went on to observe:

37. [118]

    The appellant submits that the trial judge failed to give directions consistent with these passages in Phan concerning the need for a causal link.

38. [119]

    The question of whether an accessory present at the scene needs to have actually encouraged the principal was considered by the Victorian Court of Appeal in R v Lam (2008) 185 A Crim R 453; [2008] VSCA 109 (“Lam (VSCA)”) at 474-5 ([89]) in an appeal from the decision of Redlich J in R v Lam (Ruling No 20) (2005) 159 A Crim R 448; [2005] VSC 294 (“Lam”).

39. [120]

    In Lam, seven persons were accused and ultimately convicted of murdering the deceased on the basis that they had each participated in a joint criminal enterprise. The Crown case was that three of the accused were principals in the first degree and the remaining four were principals in the second degree, being present but not participating in the acts which caused the deceased’s death. Those acts were said to have occurred after a fight broke out among a group of Vietnamese youths at the Salt nightclub in South Yarra on 8 July 2002. The alleged principals in the second degree were said to have aided and abetted the acts of the principals in the first degree by assisting or encouraging the principals in the first degree to commit the offence.

40. [121]

    It was the Crown case that three of the principals in the second degree were present at the scene where the principals inflicted injuries upon the deceased which caused his death. In the case of two of them it was alleged that they had driven their motor vehicles to the murder scene to assist or encourage the principals in the commission of the offence. It was said that, once they alighted from their motor vehicles, they stood close to the deceased while some of the injuries resulting in his death were inflicted and that they thereafter returned to their motor vehicles and waited with the intention to assist the principals in the first degree by driving them away from the scene. In relation to the third principal in the second degree it was alleged that he had chased the deceased and then stood in close proximity to him as he was attacked by one or more of the principals thereby encouraging them to commit the offence.

41. [122]

    Although the three men charged with being a principal in the second degree each admitted to being present in the vicinity of the crime scene, each of them claimed that he had not performed any act which constituted assistance or encouragement of one or more of the principals and that their mere presence could not constitute aiding and abetting.

42. [123]

    The decision in Lam concerned rulings as to the appropriate directions to be given to the jury at trial. One of the questions which arose for the trial judge was whether the prosecution must establish that the act or acts said to constitute aiding and abetting in fact assisted or encouraged the principal in the first degree. Redlich J reviewed a long line of authorities including Phan, in relation to which his Honour stated the following:

43. [124]

    His Honour then held that (at [76]-[77]):

44. [125]

    The Victorian Court of Appeal in Lam v R (VSCA) affirmed the directions given by Redlich J as set out in Lam (at 474).

45. [126]

    Likiardopoulos v R (2010) 30 VR 654 (“Likiardopoulos (VSCA)”), was another Victorian decision concerned with principles of joint criminal enterprise. The appellant and six co-accused were charged with murder after a young, intellectually handicapped man was brutally beaten to death. The Crown withdrew the charge against one co-accused and accepted pleas of guilty to lesser charges in relation to the others. Accordingly, the appellant was the only person charged with murder.

46. [127]

    The appellant was charged as a principal with the murder of the deceased. It was alternatively left to the jury that he was guilty on the basis that he had directed and encouraged the principal offenders to murder the deceased. The Crown case was that he had assaulted the deceased and encouraged others to assault him. He was thus said to be a party to a joint criminal enterprise to inflict really serious injury on the deceased and that, pursuant to that enterprise, one or more co-offenders had carried out the act or acts causing the deceased’s death. The jury subsequently returned a guilty verdict of murder.

47. [128]

    On appeal to the Victorian Court of Appeal, one of the appeal grounds was that the trial judge had fallen into error by directing the jury that the Crown did not have to prove that the alleged acts of counselling or procuring did in fact cause or even encourage the principal or principals to commit the offence. On this point, the Court (Buchanan, Ashley and Tate JJA) said as follows (at 678-80):

48. [129]

    The decision of the Court of Appeal in Likiardopoulos was considered in Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37 (“Likiardopolous (HCA)”). The sole issue before the High Court was whether the trial judge fell into error in leaving the accessorial case to the jury in circumstances where the Crown had accepted pleas of guilty to lesser offences from those it was alleged were the principal offenders. The Court dismissed the appeal. Gummow, Hayne, Crennan, Kiefel and Bell JJ observed (at [20], citing Giorgianni at 487-8 per Gibbs CJ a; at 500 per Wilson, Deane and Dawson JJ) that:

49. [130]

    In making distinct the differences between “counselling”, “procuring”, “aiding” and “abetting”, Gummow, Hayne, Crennan, Kiefel and Bell JJ said (at [23]):

50. [131]

    The appellant placed reliance upon the decision of Rothman J in R v Spiteri-Ahern (No 11) [2017] NSWSC 1820 (“Spiteri-Ahern”), a decision following a judge-alone trial involving four co-accused. One of the co-accused, Ms Barber, was charged with being an accessory before the fact on the basis that she agreed with a co-offender to lure the deceased to a certain location. Rothman J observed at [21] that “the manner in which the Crown seeks to prove this offence has been less than satisfactorily explained. In particular, the elements of the commission of the offence of accessory before the fact were not the subject of detailed explanation.”

51. [132]

    His Honour went on to observe the following at [30]-[37]:

52. [133]

    Rothman J found that the Crown had not proved beyond reasonable doubt that the accessory had knowledge that the information she provided was for the purpose of the principal inflicting grievous bodily harm or the purpose of killing (at [182], [190]). The possibility or probability of the purpose did not suffice (at [183], [190], [195]).

53. [134]

    The New South Wales Law Reform Commission (“NSWLRC”) Report 129, “Complicity”, was published in December 2010. The terms of reference were to review the law of complicity with a view to, inter alia, possible codification of this area of the law. Although the recommendations for change made in the report have not as yet been acted on, the report contains a statement of the common law in this area. Relevantly, the elements of accessory before the fact are set out at 2.12 - 2.15 as follows (The footnotes in the report have been reproduced in the body of the relevant text):

54. [135]

    The NSWLRC cited the United Kingdom decision in R v Calhaem [1985] QB 808 (“R v Calhaem”). and Professor Fisse’s, “Howard’s Criminal Law”,1990, 5th ed, at page 329 in support of the statement that there is no requirement for any causal connection between the act of encouragement and the commission of the offence. I consider the decision R v Calhaem below at [151]. The relevant passage from Professor Fisse’s text (at 329) relied upon by the NSWLRC is as follows:

55. [136]

    Professor Fisse goes on to state at 329:

56. [137]

    This statement of the relevant law is consistent with Professor Gillies’ statement in “Criminal Law”, 1997, 4th ed, at page 162 where he wrote:

Decisions from the United Kingdom

1. [138]

   The appellant relied upon the decisions in R v Mendez [2011] QB 876 (“Mendez”) and R v Stringer [2012] QB 160 (“Stringer”), as authority for the proposition that the principal must have acted with the assistance or encouragement of the accessory.

2. [139]

   The difficulty with placing reliance on these decisions is that they were both decisions concerned with extended joint criminal enterprise at a time shortly before the decision in R v Jogee [2016] 2 WLR 681; [2016] 2 All ER 1; [2016] UKSC 8 (“Jogee”) and I am not satisfied that they reflect the common law of Australia as was confirmed by the High Court in Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30 (“Miller v The Queen”). In order to explain why I do not consider these cases to reflect the common law of Australia it is necessary to have regard to the fact that the common law of Australia and that of the United Kingdom have diverged in relation to principles of extended joint criminal enterprise.

3. [140]

   In Clayton v The Queen (2006) 81 ALJR 439; [2006] HCA 58 at 444 (“Clayton”) the High Court was invited to rule that the doctrine of extended joint criminal enterprise as stated in McAuliffe should be either abandoned or confined. When the High Court, by majority, declined to do so, one of the reasons was that principles consistent with McAuliffe form part of the common law in other countries.

4. [141]

   On 18 February 2016, the Supreme Court of the United Kingdom held in Jogee that the common law had taken a “wrong turn” and that there is no place for extended joint criminal enterprise liability in the law.

5. [142]

   Following the decision in Jogee, the High Court was invited in Miller v The Queen to consider the scope of the doctrine of extended joint criminal enterprise as stated in McAuliffe and determine whether it should be either abandoned or confined. The Court held that the principle of extended joint criminal enterprise liability stated in McAuliffe should remain part of the common law of Australia.

6. [143]

   Relevantly for present purposes, in Miller v The Queen the relationship between accessorial liability and joint criminal enterprise/extended joint criminal enterprise in terms of the differential position between the United Kingdom and Australia was noted as follows by French CJ, Kiefel, Bell, Nettle, Gordon JJ (at [33]-[34]):

7. [144]

   The reference to Professor Simester is a reference to his article, AP Simester, “The Mental Element in Complicity” (2006) 122 Law Quarterly Review 578 at 596-598, whereas the reference to Professor JC Smith is a reference to his article, JC Smith, “Criminal Liability of Accessories: Law and Law Reform” (1997) 113 Law Quarterly Review 453. Suffice it to say that, whereas the High Court has adopted Professor Simester’s categorisation of joint criminal enterprise as a stand-alone doctrine, the United Kingdom has followed Professor Smith’s contention that it forms part of principles of accessorial liability. It is important to note this significant difference in approach when considering any decisions emanating from the United Kingdom in this area of the law.

8. [145]

   In that context, I turn to consider the decisions in Mendez and Stringer.

9. [146]

   Mendez was relied upon by the appellant as authority for the proposition that, in a case of accessory before the fact, the “encouragement” or “assistance” must have constituted actual encouragement or assistance to the crime even if the principal did not need assistance or encouragement. As mentioned above, Mendez was an appeal concerned with extended joint criminal enterprise decided prior to the decision in Jogee. Toulson LJ observed at [17] that:

10. [147]

    As stated above, this passage does not reflect the common law of Australia as was made clear in Miller v The Queen. The specific passage relied upon by the appellant in Mendez is at [23] where his Toulson LJ observed, in the context of a case of extended joint criminal enterprise:

11. [148]

    Stringer was relied upon by the appellant as authority for the same proposition. Stringer was also a decision of Toulson LJ and was decided after Mendez. Toulson LJ described the appeal as raising issues “…once again about secondary liability for murder and the so-called joint enterprise doctrine”. In that context, his Lordship observed the following:

12. [149]

    Toulson LJ went on to observe that “[w]hether D’s conduct amounts to assistance or encouragement is a question of fact” (at [51]) and that “[t]here may be cases where any assistance or encouragement provided by D is so distanced in time, place or circumstances from the conduct of P that it would be unjust to regard P’s act as done with D’s encouragement or assistance” (at [52]).

13. [150]

    Not only am I required to approach any decision from the United Kingdom concerned with extended joint criminal enterprise with some caution, I am not satisfied that either of these decisions stand as authority for the proposition that the principal offender needs to be actually encouraged in any event; only that there need be such encouragement or assistance in the sense of the act of encouragement being capable of constituting encouragement.

14. [151]

    The appellant also relied upon the decision in R v Calhaem referred to above in Mendez, as standing as authority for the proposition (in the United Kingdom), that there must be “some connection” between the counselling and the commission of the offence. As stated above at [134] to [137], the decision in R v Calhaem is advanced in the relevant texts and by the authors of the NSWLRC Report 129 as authority for the proposition that there is no requirement for there to be a causal connection between the assistance or encouragement given and the commission of the offence.

15. [152]

    R v Calheam concerned a case where the applicant had hired a private investigator to kill a woman who was having an affair with her solicitor. The private investigator killed the woman after receiving a down payment of £5000. The private investigator became the principal witness for the prosecution. He gave evidence that he had no intention of killing the deceased. Rather, he merely intended to act out a charade to make her think that an attempt had been made to murder her. He gave evidence that after the deceased screamed he had “gone berserk” and hit her several times with a hammer and killed her. It appears he stabbed her in the neck with a knife afterwards. The applicant was convicted.

16. [153]

    A number of points were raised on her appeal. Relevantly for present purposes one of the complaints made was that there need be a “substantial causal connection” between the acts of the applicant and the commission of the offence. Lord Justice Parker gave the judgement of the court. He noted (at 812) that “the point is a novel one, on which there is no direct authority.” His Lordship went on to observe the following at 813:

17. [154]

    His Lordship referred to a number of decisions, concluding that none of them were of particular assistance. His Lordship then referred to the “modern textbook writers”, in particular Smith & Hogan and Granville Williams, and observed that the approach taken by them was consistent with that taken by the trial judge who did not give a direction that there was any necessity for there be a “substantial causal connection” between the counselling and the commission of the offence. The relevant passage in Glanville Williams, Criminal Law, The General Part, 2nd ed. (1961) at 383 relied upon by Parker LJ was in these terms:

18. [155]

    The relevant passage in Smith & Hogan, Criminal Law, 5th ed. (1983) extracted in full by Parker LJ in R v Calheam at 817 is somewhat lengthy. It is sufficient for present purposes if I simply extract the following portion of it:

19. [156]

    After extracting the above passage Parker LJ went on to state the following:

20. [157]

    Having regard to the principles derived from these decisions I turn to consider the grounds of appeal in this matter.

Ground 1(b): The trial judge erred in failing to give proper directions on causation in an offence of accessory before the fact.

1. [158]

   The parties dealt with these grounds together in their submissions.

2. [159]

   The appellant submitted that Hall J fell into error by directing the jury that it was not necessary to prove actual encouragement of the principal offender. The decisions of Giorgianni (at 481 and 488), Phan (at [72]) and Spiteri-Ahern (at [33]) were relied upon in support of the proposition that the accessory before the fact must in fact encourage the principal offender and that a direction should have been given in accordance with the current law as summarised in Phan at [69], [70]-[72], [78] and [107]. The judgments of Gibbs CJ and Mason J in Giorgianni were also said to support a direction in terms that the principal in the second degree must be “linked in purpose” with the person actually committing the crime and, by words or conduct, must do something to bring about, or render more likely, the commission of the primary offence.

3. [160]

   It was noted that although the decision in Lam was relied upon at the trial as authority for the proposition that actual encouragement was not necessary, that case involved an accessory who was present at the fact and also was a case about both joint criminal enterprise and aiding and abetting of secondary participants at the commission of the crime. While an accessory at the fact, or principal in the second degree, may be culpable by their presence and assistance or encouragement at the scene, an accessory before the fact is absent from the crime. This absence was said to underscore the need for a causal link based on actual encouragement or assistance. It was said that such encouragement or assistance could be established through circumstantial evidence or, for instance, by the words spoken in an order given by an accessory before the fact by virtue of the relationship between the parties.

4. [161]

   The Crown submitted that the passage of Gibbs CJ’s judgment in Giorgianni at 481 does not establish a requirement that the Crown prove that the accessory in fact encouraged the principal offender to commit the crime in the sense that the crime may not have been committed without the conduct of words of the accessory. In Giorgianni, the Court was considering whether liability as an accessory before the fact could apply to an offence of dangerous driving occasioning death. The Court was also considering whether recklessness as to the existence of facts and circumstances which would render the driving dangerous, rather than actual knowledge as to those facts and circumstances, was sufficient. It was in the context of considering this second question that Gibbs CJ quoted from Russell on Crime at 481 (see above at [99]. No consideration was given by his Honour to what was meant by the third “bare minimum” requirement quoted from Russell on Crime as this did not arise in Giorgianni.

5. [162]

   The Crown placed reliance on Lam (VSCA). It was submitted that the reasoning in Lam (VSCA) is not materially different from the reasoning of this Court in Phan because Phan was concerned with a different issue.

6. [163]

   It was submitted that there was no clear authority for any requirement of proof that the acts relied upon to establish aiding and abetting in fact assisted or encouraged the principal in the first degree to commit the offence, nor that a causal link must be established between the acts of assistance and encouragement and the commission of the crime. It was noted that in Likiardopolous (VSCA) at [103]-[113], the Court of Appeal of Victoria dismissed a ground of appeal asserting that there was such an element.

7. [164]

   These grounds concern whether the trial judge erred in providing the jury with the written direction in MFI 14 that “[i]t is not necessary, in cases where the accused ‘encouraged’ the primary offender, for the Crown to prove that he was actually encouraged by the accused’s words or actions” (emphasis added). As stated above, his Honour simply read this direction to the jury and did not go on to supplement it with any further oral directions beyond stating that the principles in MFI 14 “may or may not have relevance depending upon your assessment.”

8. [165]

   Having regard to the decisions relied upon by the appellant, I am not satisfied that any of them stand as authority for the proposition that the Crown must establish beyond reasonable doubt that the principal offender was actually encouraged by the accused’s words or actions to the extent that he was subjectively encouraged by those words or actions.

9. [166]

   The appellant placed significant weight on the passage from Russell on Crime quoted by Gibbs CJ in Giorgianni (at 481). The third of the three elements said to be necessary for before the fact accessorial liability was that the accessory’s “…attitude in respect of it in fact encouraged the principal offender to perform the deed” (emphasis added). The difficulty with reliance upon this extract from Russell on Crime is that Gibbs CJ was at that time considering whether recklessness (as opposed to actual knowledge) is sufficient for the mental element of an accessory before the fact. It was in that context that his Honour cited the passage from Russell on Crime with approval in support of the proposition that “knowledge of the facts is necessary before a person can be made liable as a secondary party for the commission of an offence.” In other words, the extract from Russell on Crime was relied upon as support for the proposition that recklessness as to the facts is an insufficient mental element for accessorial liability.

10. [167]

    Similarly, Gibbs CJ’s adoption of the passage from United States v Peoni at 479-80 (see above at [95]) was also made in the context of addressing the necessary state of mind of the secondary party. United States v Peoni did not concern causation either.

11. [168]

    The appellant also relied upon the observations of Mason J in Giorgianni (at 494) where his Honour stated:

12. [169]

    Again, it is important to consider this passage in the context of the issue before the Court in Giorgianni, being the relevant mental element for an accessory before the fact. The words “linked in purpose” and “render more likely” which Mason J adopted from R v Russell were directed at that issue. Nowhere in Giorgianni does any member of the High Court suggest that there must be “actual encouragement” of the principal offender.

13. [170]

    More recently in Likiardopolous (HCA), the High Court addressed the basis of the appellant’s liability in order to dispose of the ground concerned with inconsistent verdicts. Gummow, Hayne, Crennan, Kiefel and Bell JJ, (with whom French CJ and Heydon J agreed in separate judgements), set out the elements of accessorial liability at [20] (extracted above at [129]). Their Honours also held that the evidence in that trial “was capable of proving that those whom the appellant was said to have directed and encouraged to commit the offence had murdered the deceased” ([27]). At [38], their Honours observed that the evidence from two of the co-offenders who had pleaded guilty to manslaughter supported “as a step in proof of the appellants accessorial guilt, the finding that one or more of those whom he had directed or encouraged had assaulted the deceased with the intention which made the act murder.”

14. [171]

    Although that decision was concerned with a different issue than in the present appeal, it is relevant that these passages from Likiardopolous (HCA) at [20], [27] and [38] do not suggest that there is any requirement of proof that the acts relied upon to establish aiding and abetting in fact assisted or encouraged the principal in the first agree to commit the offence. Nor do any of these passages suggest that any causal link must be established between the acts of assistance and encouragement and the commission of the crime.

15. [172]

    The appellant also relied upon the decision of this Court in Phan but I do not consider that decision to be authority for the proposition that the Crown must establish that the principal was in fact encouraged by an accessory before the fact either. The appellant contends that Hall J should have given directions consistent with the decision of Wood CJ at CL at [68]-[72] in Phan (extracted above at [114]). In particular, reliance was placed on his Honour’s observation at [69] that:

16. [173]

    When Wood CJ at CL made this observation his Honour was considering the question of whether mere presence at the scene is a sufficient mental element to establish the guilt of a principal in the second degree present at the scene. After making these observations, his Honour went on to refer to the decisions in R v Coney (1882) 8 QBD 534, R v Allan [1965] 1 QB 130; [1963] 3 WLR 677, R v Clarkson [1971] WLR 1402 and R v Russell before observing at [76]:

17. [174]

    Wood CJ at CL then observed at [77]-[78]:

18. [175]

    The use of the phrases “linked in purpose” and doing something to “render more likely” the commission of the offence referred to in Phan refer to the necessary mental element and do not lend support to any general proposition that there must be proof of causation as contended by the appellant. The words were used by his Honour to distinguish between mere assent by presence as opposed to presence accompanied by some intentional act of assistance or encouragement.

19. [176]

    Applying the principles derived from Phan to the present matter, it was necessary for the Crown to establish beyond reasonable doubt that the appellant’s “encouragement” amounted to more than mere approval of the crime. It had to be established beyond reasonable doubt that the appellant’s words constituted intentional encouragement or assistance (Phan at [69] and [78]). The reference by Smart AJ to the requirement that “the accused assisted or encouraged” the co-accused (at [115]), is also a reference in that context to a requirement that the accessory do an act capable of encouraging or assisting accompanied by an intention to encourage or assist. A direction was not given in these terms by Hall J.

20. [177]

    The third decision relied upon by the appellant was the statement by Rothman J in Spiteri-Ahern at [33] where his Honour stated:

21. [178]

    His Honour does not cite any authority for the general proposition that there must be a “causal link” between the acts of the accessory before the fact and the commission of the offence. His Honour followed this statement by making the uncontroversial statement that mere acquiescence is insufficient to establish guilt as an accessory before the fact. I am satisfied that what his Honour was meaning to convey in this passage is that there must be actual assistance or encouragement and not mere presence and/or acquiescence. His Honour makes no other statement during his judgment to any requirement that the principal must in fact be assisted or encouraged by the accessory.

22. [179]

    Although not directly relevant to this appeal, I note also that the reference by his Honour at [34] in Spiteri-Ahern to it being necessary that the accused believed at the time of the assistance that murder was a “distinct possibility” (see above at [132]), does not appear to be consistent with the authorities.

23. [180]

    I have also considered the Victorian decisions in Lam (VSCA) and Likiardopoulos (VSCA). Those decisions are authority for the proposition that in a case of an accessory present at the scene, the prosecution is not required to establish that the acts said to constitute aiding and abetting in fact assisted or encouraged the principal in the first degree. It was common ground at the hearing of the present appeal that the decisions in Phan and Lam (VSCA) could be reconciled because they were concerned with different issues. On that basis it was submitted that there was no need for a bench of five judges to sit to consider any such inconsistency. I accept that to be the case. Although Lam (VSCA) expressly states that no actual encouragement is required for an accessory at the fact, Phan was concerned with what, beyond presence, is required. Phan did not consider the question of whether the principal offender had to be actually encouraged.

24. [181]

    The thrust of the appellant’s submissions under these grounds is that an additional direction needed be given at the appellant’s trial that a “causal link” had to be established and that the Crown must eliminate any reasonable possibility that Mr Fuller was acting without the appellant’s assistance/encouragement. It was not suggested that such an additional direction need be given in relation to an accessory at the fact. Rather, it was submitted that the appellant’s absence from the scene underscored the need for a causal link based on actual encouragement or assistance to be proved. The difficulty with this submission is that the High Court has held in both Johns and Giorgianni that the only difference between the elements for an accessory before the fact and an accessory at the fact is presence. In those circumstances, it is not open for me to find that an additional element of the offence needs to be proved by the Crown in cases where an offender is prosecuted as an accessory before the fact not present at the scene.

25. [182]

    I am thus not satisfied that, in cases where a person is charged with being an accessory before the fact in circumstances where they were not present at the scene and the alleged encouragement is by words alone, an additional element must be proved by the prosecution beyond reasonable doubt, namely, that the words in fact encouraged the principal offender. It is difficult to see how such a subjective concept could be established beyond reasonable doubt in any event. As Toulson LJ observed in Mendez at [23]:

26. [183]

    Although I have approached the decision in Mendez with some caution for the reasons set out above at [139], I adopt the concerns expressed by Toulson LJ regarding the difficulties that would arise if actual encouragement had to be established by the Crown beyond reasonable doubt on the part of each of a number of co-offenders. How could the Crown ever establish beyond reasonable doubt the particular encouragement of the principal offender (or principal offenders) by separate co-offenders not present at the scene who encouraged one or more of the principal offenders by words alone? Redlich J made similar observations in Lam in the passage extracted above at [124] where his Honour noted that it would impose “an impossible burden” upon the prosecution to have to establish actual encouragement because it would “rarely be in a position to place evidence before a jury as to the effect of the secondary participant’s conduct on the principal offender’s state of mind.”

27. [184]

    Although I am not satisfied that, in cases where the accused is said to have “encouraged” the primary offender, the Crown must prove that the primary offender was actually encouraged by the accused’s words or actions, I am nonetheless satisfied that the written direction in MFI 14 should have been explained to the jury in the context of what the jury did have to be satisfied of beyond reasonable doubt. While the jury was instructed that it had to be satisfied beyond reasonable doubt that there was intentional encouragement of Mr Fuller, that direction did not form part of the written directions in MFI 12. Nor was the jury instructed at any stage as to the meaning of encouragement or that the words of the appellant had to be capable of encouraging Mr Fuller.

28. [185]

    In assessing whether the direction was inadequate, it is relevant to note that the Crown Prosecutor at the trial requested that the direction at point 1 of MFI 14 be given because, as he said, “it rebuts, if that is the right word, the contention… the submission by [defence counsel] of this opportunistic, that what was done was done as a result of a number of unforeseen circumstances. It goes to that aspect.” Although I am satisfied that the Crown does not need to establish beyond reasonable doubt that the principal offender was in fact encouraged, the fact that the Crown sought this direction to close off an aspect of the defence case illustrates why it was incumbent upon the trial judge to balance this direction with a direction as to the meaning of encouragement and that the words of the appellant had to be capable of encouraging Mr Fuller to inflict grievous bodily harm upon the deceased.

29. [186]

    In these circumstances, although I am not satisfied that any additional element needs to be proved in a case of accessory before the fact to the extent of any causation, I am satisfied that the relevant directions in this matter concerning the element of encouragement/assistance were inadequate in the way described above at [176], [184] and [185].

30. [187]

    I would not allow Ground 1(a) but I would allow Ground 1(b).

Ground 1(c): The trial judge erred in directing the jury that assisting and encouraging is a continuous act that persists until the substantive offence is committed.

1. [188]

   It was submitted that this direction effectively removed from the jury’s consideration an integral part of the defence and directed them to be satisfied that the encouragement continued and was operable at the time that Mr Fuller murdered the deceased and that this was a misdirection in a written direction which caused the trial to miscarry.

2. [189]

   The respondent accepted that R v Robert Millar (Contractors) Pty Ltd [1970] 2 QB 54; [1970] 1 All ER 577 (“R v Robert Millar”) does not necessarily provide authority for the proposition that encouraging and assisting are always continuous until the crime is committed.

3. [190]

   The Crown did not accept that the direction was necessarily productive of a miscarriage of justice in the appellant’s trial. It was submitted that the question for the jury was whether the appellant, with the requisite state of knowledge, intentionally encouraged or intentionally assisted Mr Fuller to murder Corey Power. The crime was not complete unless and until the murder took place but the question of whether the appellant’s statements constituted intentional encouragement and/or intentional assistance had to be determined at the time that they were made.

4. [191]

   The jury was told at point 5 of MFI 14 that “Assisting and encouraging is a continuous act and persists until the substantive offence is committed at which time the accessory’s offence is also committed.” As I have already observed, after reading MFI 14 to the jury, it was not otherwise explained to the jury by the trial judge.

5. [192]

   The Crown Prosecutor at the trial had sought this direction from Hall J based on the decision in R v Robert Millar. He submitted at trial that the decision in R v Robert Millar was authority for the proposition that assisting and encouraging is a continuous act and persists until the substantive offence is committed.

6. [193]

   The principal offender in R v Robert Millar was an employee of a company who drove a lorry knowing that the front offside tyre was in a “defective and dangerous” condition. The tyre blew out and caused a head-on collision which killed six persons. The appellant was the director of the company who had instructed the driver to drive the lorry knowing its defective condition. The journey commenced in Scotland and the deaths occurred in England. The appellant was convicted as an accessory before the fact to the dangerous driving.

7. [194]

   The issue for consideration in R v Robert Millar was whether the charge had been brought in the proper jurisdiction given that the journey commenced in Scotland and the offence was charged as having been committed In England. It was in that context that the Court (Fenton Atkinson and Megaw L.JJ and Crichton J) held (at 73):

8. [195]

   I am satisfied that the statement in R v Robert Millar is not one of general application and that it should not have been given in the written direction in MFI 14 or at all.

9. [196]

   Nor am I able to accept the Crown submission that this written direction in MFI 14 was just another way of directing the jury that the question of whether the appellant’s words were in fact acts of encouragement is to be assessed at the time they were spoken and not some later time. If that was what his Honour had intended to convey with this written direction then there would have been no need for the direction at point 2 in MFI 14 which clearly stated that “the accused’s state of mind is to be assessed at the time he gave the relevant encouragement or assistance, rather than at the time of the offence”. The addition of a direction that “assisting and encouraging” is a “continuous act” and persists until the offence is complete must have meant to convey something more than this.

10. [197]

    The appellant’s defence at trial was that the death of the deceased was the result of Mr Fuller’s spontaneous acts and the appellant could not have foreseen that he would have had the opportunity to log on to his former girlfriend’s Facebook account, pretend to be her, lure the deceased to a secluded spot and then beat the deceased to death with a tomahawk. This was the key issue at the trial. A direction that the appellant’s words were “continuous” without further explanation was apt to undermine that defence.

11. [198]

    I am satisfied that the judge erred in giving the direction in this matter and that it caused unfairness to the appellant. The question of whether the encouragement “was operative” at the time of the murder was critical to the appellant’s defence.

12. [199]

    I have considered the fact that the appellant’s trial counsel expressly opposed the jury being directed that the prosecution must prove that the accused did not “withdraw” the encouragement or assistance at any time before the murder was committed. It is well established that even if a person has agreed with others to commit an offence, he or she may withdraw from that enterprise or agreement. If he or she does so, then they cease to be criminally responsible for the crime if the others who are party to the agreement go on to commit the crime after the withdrawal. These principles were considered by this court in Tierney v R [2016] NSWCCA 144 at [17]-[21]. Defence counsel at trial opposed any such direction being given in the appellant’s trial on the basis that this was not a case of joint criminal enterprise nor extended joint criminal enterprise and thus the principles were not applicable.

13. [200]

    In circumstances where the principles pertaining to withdrawal from an enterprise only apply where there has been an agreement in the first place, I do not believe that any criticism can be levelled at defence counsel for resisting such a direction in the circumstances. It was correct at law. Although the Crown relies upon this forensic decision by defence counsel in support of its contention that no error occurred in relation to this ground, I do not accept that to be the case. I consider this general issue further below under Ground 2.

14. [201]

    I would allow Ground 1(c) as well.

Ground 1(d): The trial judge erred in failing to give proper directions as to the knowledge required to be proved in an accessory before the fact to murder and further, in failing to direct the jury that recklessness would not suffice.

1. [202]

   This ground complained that the trial judge failed to adequately direct the jury in relation to knowledge. First, there was no direction that the appellant would “not have sufficient knowledge and hence the necessary intent if the participant does not know that the principal offender was about to do or was doing something which amounted to the alleged offence”: Giorgianni at 505, applied in Lam (VSCA) at 465 [89] and Phan at [77]. Second, there was no direction given, consistent with the decision in Giorgianni, that recklessness would not suffice.

2. [203]

   The Crown submitted that the trial judge gave the jury clear and correct directions concerning the requirement of knowledge. Consistent with Giorgianni, the jury was directed in MFI 12 that it was necessary for the Crown to prove beyond reasonable doubt that the accused knew all the essential facts and circumstances necessary to show that the principal offender intended to assault and inflict upon the victim grievous bodily harm.

3. [204]

   It was submitted that when the summing up is read as a whole alongside the written directions, the jury was clearly and correctly directed that it must be satisfied that the appellant had knowledge that what Mr Fuller intended, upon locating the deceased, to assault him with the intention of inflicting grievous bodily harm upon him. With that knowledge, the appellant provided the alleged assistance and/or encouragement.

4. [205]

   It was further submitted that it was not necessary to direct the jury that recklessness would not suffice on the facts of this case. The jury was directed in terms of actual knowledge. There was nothing to suggest that the jury would have proceeded on the basis that the appellant was reckless as to the facts constituting the offence. The fact that no request was made by trial counsel for such a direction lends support to that contention.

5. [206]

   The jury was directed in MFI 12 that the Crown had to prove beyond reasonable doubt that the appellant knew all the essential facts and circumstances “necessary to show that the principal offender intended to assault and inflict upon the victim grievous bodily harm”. The written direction on the elements was supplemented by oral directions by the trial judge which I have already extracted above at [63]-[68]. Those extracts show that the trial judge told the jury that the Crown case was that the appellant had knowledge that Mr Fuller intended to assault Mr Power so badly as to inflict grievous bodily harm upon him, that he was “going to” do this, and that, with such knowledge, the appellant encouraged and/or assisted him to do so.

6. [207]

   The High Court held in Giorgianni that the relevant knowledge to be proved beyond reasonable doubt is that the accessory before the fact knew that the principal was “doing something or is about to do something.” The closest the trial judge came to giving this direction was where his Honour directed the jury that “[t]he necessary intent or state of mind is absent if the accused lacked the knowledge that Owen Fuller was going to do something which amounts to assault to inflict really serious bodily injury upon Mr Power.” This direction was not repeated nor did it form part of the written direction. As this Court held in Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 63 at [70], written directions are likely to “decisively frame the jurors’ deliberations, as opposed to the jurors’ recollections of a lengthy oral address.”

7. [208]

   I am unable to accept the Crown submission that the failure of the trial judge to direct the jury consistent with Giorgianni may have been because it was considered by his Honour to not be apt for the circumstances of this case. The unusual facts of this matter required such a direction.

8. [209]

   There was no reference in any of the exchanges between the appellant and Mr Fuller as to when or how any assault would take place and most of the exchanges are suggestive of the assault taking place when both of Mr Fuller and the appellant were present. In the context of the evidence at trial, I am satisfied that it was not sufficient that the jury only be told that they needed to be satisfied beyond reasonable doubt that the appellant knew “all the essential facts and circumstances necessary to show that Mr Fuller intended to assault and inflict upon the victim grievous bodily harm”. The jury ought to have been fully directed, consistent with Giorgianni (as applied in Phan), that the Crown needed to establish beyond reasonable doubt that the appellant knew that Mr Fuller was going to intentionally inflict grievous bodily harm on the deceased.

9. [210]

   I turn next to consider the complaint that no “recklessness” direction was given. I note that, although the position of the Crown in written submissions was that the need for such a direction had not been raised by trial counsel, it was accepted during the hearing of this appeal that that had in fact impliedly occurred.

10. [211]

    The principal submission of the Crown in relation to the need for a recklessness direction was that the trial judge was only required to direct the jury on the principles of law necessary to resolve those matters which arise for their determination in a particular trial: R v Chai (2002) 187 ALR 436; [2002] HCA 12 at [18]. It was submitted that there is often no need to give a recklessness direction if it has been properly explained to the jury what is meant by “intention” and that such a direction was given in this case.

11. [212]

    The nature of the “encouragement and/or assistance” relied upon by the Crown at trial was words alone gleaned from Facebook and text messages which suggest that what was being discussed was whether the two men would assault the deceased when they were together. The exchanges extracted above show that what the appellant wanted to do was something to make the deceased “remember” it. When Mr Fuller suggested that he wanted the deceased to remember the look in his eyes and know that he would “never be able to fuck over any cunt again” the appellant replied “Na u save that for later in life we will jus chop index n look.” Mr Fuller then stated that perhaps he should not come with the appellant when he confronted the deceased, writing: “cause I don’t know man my head just ticking”. The appellant responded “Ur right ill sort him if I need back up I’ll ring ya.” Despite the appellant stating that he would meet the deceased on his own, Mr Fuller responded “I’ll come brah cause its mine and your life he playing with bout time we started playing with his and got him into the state that he does his self saves us.”

12. [213]

    The High Court in Giorgianni clearly stated that recklessness is an insufficient state of knowledge to implicate an accessory before the fact. As the extracts above show, the Crown case in this matter relied upon non-specific, generalised talk over a period of time about wanting to assault the deceased. The high point of such assault rising to the level of intentional infliction of grievous bodily harm, was the combination of the appellant suggesting to Mr Fuller that if he saw the deceased he should “jump on his head” and the appellant’s earlier reference to chopping (presumably “off”) the deceased’s index finger. After these discussions in which it was suggested that the two men would assault the deceased together, Mr Fuller beat the deceased to death with a tomahawk 24 hours later on his own. This evidence relied upon by the Crown left open the question of whether the appellant was simply reckless as to what Mr Fuller might do.

13. [214]

    On the facts in this case, I am satisfied that a recklessness direction ought to have been given along the lines of:

14. [215]

    It is well established that the only difference between the elements of the offence for an accessory before the fact and an accessory at the fact is the element of presence. Thus, the requisite knowledge of the actions of the principal offender is the same for a person such as the appellant (not present at the scene) and a person present at the scene who is able to see precisely what actions the principal is taking: see Giorgianni per Mason J at 492. This highlights the importance of a very clear direction in relation to the necessary knowledge in a case such as the present where the appellant was not present with Mr Fuller when the killing occurred.

15. [216]

    Before leaving this ground of appeal, I wish to make an additional observation regarding the Crown case as to the appellant’s knowledge of what Mr Fuller was going to do. The written “elements” direction, MFI 12, contained as the relevant element that the appellant knew “all the essential elements and circumstances necessary to show that the principal intended to assault and inflict upon the victim, grievous bodily harm, meaning really serious bodily injury.” As stated above, the Crown relied upon the appellant’s messages to Mr Fuller that he should “chop index” and some time later, that he should “jump on his head.” There is a degree of ambiguity concerning the expression, “jump on his head”. It could either be describing a general assault or that he meant for Mr Fuller to literally jump on the deceased’s head. Reliance was no doubt placed on the appellant’s suggestion that they should “chop index” because if a person’s index finger was chopped off then that would amount to grievous bodily harm. The difficulty I have with reliance upon a suggestion that the deceased’s index finger should be chopped is that it is difficult to envisage a situation whereby cutting off a person’s index finger could ever lead to their death.

16. [217]

    In Mendez, Toulson LJ observed the following regarding the history of the common law mental element for murder at [27]-[30], albeit in the context of exploring principles of extended joint criminal enterprise:

17. [218]

    Although it is to be accepted on the current state of the law that an intention to chop off an index finger is capable of constituting the mental element for murder, the facts in this case illustrate how remote such an intention could be from an intention to kill. Given that no submissions were directed to this issue at the hearing in this matter and also given that the relevant principles are well established, I do not propose to consider that issue any further.

18. [219]

    I would allow Ground 1(d) of this appeal as well.

Ground 2: The trial judge erred in his directions applying concepts from joint criminal enterprise to directions to the jury on proof of accessorial liability as an accessory before the fact to murder by encouraging and assisting a principal offender’s murder of the deceased.

1. [220]

   Defence counsel from the outset of the trial made submissions that it was necessary for the trial judge to avoid notions of “contemplation” and “scope” which were relevant to joint criminal enterprise reasoning rather than accessorial liability.

2. [221]

   While it was accepted that defence counsel had used the word “design” in his closing address, it was submitted he did so in the sense of “intent” as that word was used in Giorgianni at 507. That is, his address to the jury was that the offence formed no part of the appellant’s intent.

3. [222]

   It was submitted that the trial judge erred by introducing concepts of joint enterprise, equating this to “design” and describing the “enterprise” as embarking on an assault. Nor was there any obligation for the jury to find positively that there was “something completely separate” that occurred. The Crown had to eliminate beyond reasonable doubt the reasonable possibility that Mr Fuller was acting on his own and the reasonable possibility that the appellant did not intend to encourage or assist him in the murder of the deceased by Mr Fuller’s intentional infliction of grievous bodily harm.

4. [223]

   The Crown relied upon the fact that the term “design” was introduced by defence counsel in his closing address, when he said to the jury:

5. [224]

   It was observed that the trial judge used a variety of language throughout his summing up in seeking to integrate the evidence in the trial, the parties’ respective cases, and the legal issues that the jury was required to decide. Despite this, it was submitted that his Honour’s directions were clear and the jury was not misled. Reliance was placed on the fact that the impugned expressions were not part of the written directions provided to the jury.

6. [225]

   The Crown objected to leave being granted in order to argue Ground 2 as no objection was taken at trial nor was a redirection sought. Reliance was placed upon this as a basis for concluding that counsel did not believe, in the atmosphere of the trial, that any infelicity of expression in the manner in which the trial judge expressed himself affected the interests of the accused adversely: Greenhalgh v R at [42] per Basten JA; ARS v R at [148]; R v Dookheea at [37]. On that basis, it was submitted that leave should not be granted to argue this ground.

7. [226]

   In circumstances where I am already satisfied that the other grounds should be upheld, there is on one view no need to consider this ground as well. Despite this, I propose to do so given that there is some overlap between this ground and some of the other grounds. Although defence counsel made no express complaint about these aspects of the summing up, I am nonetheless satisfied that from the outset defence counsel endeavoured to make clear that this was not a case of extended joint criminal enterprise. He raised this issue at the start of the trial after the Crown suggested that it was an element of the offence that the crime that was committed was one that the appellant “intended would be committed or was within the scope of what he believed would be committed”. He raised it again in the context of the admissibility of Mr Fuller’s ERISP. I am satisfied that the general issue was raised during the trial and thus Rule 4 is not enlivened.

8. [227]

   There are four separate instances during the summing up at which time the trial judge used language more closely associated with principles of joint criminal enterprise/extended joint criminal enterprise than accessorial liability. Those four instances were: his Honour’s use of the word “design”; his Honour’s use of the word “enterprise”; his Honour’s description of the offence is one of an assault “with a view” to inflicting grievous bodily harm; and his Honour’s suggestion that there were different segments in the evidence.

9. [228]

   His Honour summed up to the jury on multiple occasions on the basis that the essential facts were whether “Fuller was going to assault Mr Power with a view to inflicting on him grievous bodily harm” (emphasis added). It was submitted by the appellant that it is possible that the jury may have concluded that all that was necessary for the Crown to prove beyond reasonable doubt was that the appellant knew Mr Fuller intended simply to “assault” the deceased “with a view to” inflicting grievous bodily harm. Although Mr Fuller may have “had a view” to inflicting grievous bodily harm, that would not have meant that grievous bodily harm was actually intended.

10. [229]

    A real question arises as to whether the jury would have understood that they each had to be satisfied beyond reasonable doubt that the appellant knew that Mr Fuller intended to inflict grievous bodily harm on the deceased rather than intending to assault him with the possibility or probability of grievous bodily harm being inflicted.

11. [230]

    As for the use of the word “design” in the summing up, it is to be accepted that of the five occasions during the summing up when the trial judge used the word “design”, four of them were when his Honour was repeating the closing address of defence counsel. But I accept the appellant’s submission in this Court that, when his Honour repeated that part of defence counsel’s closing address, he did not use the word “design” as meaning “intention” (as defence counsel had). Rather, his Honour used the word in a way so as to suggest that the case was one of an agreement of enterprise. Whereas defence counsel had asked the jury to consider whether the unforeseen events were the consequence of Owen Fuller acting opportunistically and independently “or whether it was part of the design intentionally encouraged by Mr Blundell” (emphasis added), his Honour repeated that submission as whether “...later events, occurring whether opportunistically or not, may still remain part of the design of some enterprise that an accused person encouraged in the first place and/or assisted” (emphasis added). His Honour then gave the direction I have extracted at [72] above.

12. [231]

    His Honour had earlier told the jury that it was a matter for their assessment as to whether the communications fell into segments, or whether “it forms a pattern or part of a design” (see above at [69]).

13. [232]

    I accept the Crown submission that, as a general rule, a trial judge cannot be criticised for simply repeating a word introduced by defence counsel in his or her closing address, but defence counsel had used the word “design” in his closing address in the sense of “intent” as that word was used in Giorgianni at 507 where Wilson, Deane and Dawson JJ had observed that:

14. [233]

    It was not only the reference to the word “design” that was apt to confuse in the summing up in any event. His Honour also used words such as “enterprise” and “scope” in his summing up. It was submitted by the appellant that the direction invited the jury to speculate as to what “enterprise” Mr Fuller embarked upon with his “assault” of the deceased, again suggesting that knowledge of an intentional assault potentially sufficed and that an agreement or “enterprise” prior to the crime existed.

15. [234]

    It was submitted on behalf of the Crown during the hearing of this appeal that the jury would not have known about the language of joint criminal enterprise liability such that a lay listener would not hear the words in the same way as a criminal lawyer who knows the origin of those terms. It was submitted that the trial judge was simply telling the jury that it need to be satisfied whether the “enterprise”, meaning the “confluence of unforeseen events”, was something that was foreseen by the accused. But that is not what his Honour told the jury. Rather, his Honour gave the jury a description of enterprises and new enterprises which did not relate to the written elements of the offence in MFI 12.

16. [235]

    It was not the Crown case that Mr Fuller and the appellant had any enterprise or agreement to assault the deceased. Nor was it the case that they were working together and that the liability of Mr Fuller could be imputed to the appellant as it would to a participant in an extended joint enterprise. A possible reason for this may have been the difficulty in gleaning from the Facebook and text messages the terms of the agreement between the two of them as to what would be done. If any agreement can be inferred from those messages, it was that there would be an agreement that the two men would assault the deceased together, which clearly did not occur. As French CJ, Kiefel, Bell, Nettle, Gordon JJ observed in Miller v The Queen at [34]:

17. [236]

    As a general rule, principles of extended joint criminal enterprise cast a wider net than principles of accessorial liability. However, in this trial, the Crown case was brought on principles of accessorial liability. As stated above under the consideration of ground 1(c), the Crown’s disavowal of reliance upon principles of joint criminal enterprise or extended joint criminal enterprise meant that any direction about a “withdrawal” was inappropriate. This fact only compounds the potential for unfairness created by these references to an “enterprise”. The question for the jury was whether the appellant had contributed to Mr Fuller’s crime, not whether the two men had mutually embarked on the crime.

18. [237]

    I am satisfied that the use of the words “enterprise”, “design” and the assault being “with a view” to inflicting grievous bodily harm were all apt to confuse in the circumstances of the summing up overall. It does not fall for a jury in a case of accessorial liability such as this to determine whether or not there were separate “enterprises” or an original “design” and any possible subsequent “design” or “participation”.

19. [238]

    I would allow Ground 2.

20. [239]

    I would allow all of the grounds of appeal save for Ground 1(a).

21. [240]

    The facts in this case were such that they raised issues as to the extent to which a person may be liable for murder as a secondary offender. In such circumstances it was necessary to provide the jury with clear directions concerning the appellant’s criminal liability. For the reasons provided above, I am not satisfied that this occurred at the appellant’s trial and the trial miscarried as a result.

22. [241]

    I would propose the following orders:

    1. (1)

       To the extent that leave is required under Rule 4 of the Criminal Appeal Rules 1952 (NSW), such leave is granted.

    2. (2)

       The appeal is allowed.

    3. (3)

       A new trial is ordered.

    4. (4)

       The matter is listed for mention in the Supreme Court Arraignments List on 8 February 2019 or such other date as directed by the Criminal List Judge.